EWTN Prevails Against the HHS Contraception Mandate

On October 5, 2018, the government admitted they were wrong to persecute the Eternal Word Television Network (EWTN). The admission came in a settlement in EWTN’s long-drawn-out lawsuit regarding the Contraception Mandate attached to Barack Obama’s Affordable Care Act (ACA). As a result of the settlement, the 11th Circuit Court of Appeals vacated (i.e., withdrew) its ruling against EWTN on November 29, 2018, relieving EWTN of its obligation to pay government fines which would have eventually bankrupted the entire network.

This is the most recent case in which individual rights (i.e., the conscience of individual believers) have prevailed over the ACA, its Contraception Mandate, and the overall hostility of the Obama Administration toward Christianity. The settlement concluded seven years of litigation involving maneuvering, negotiations, patience, and prayer.

In retrospect, one can identify at least two very unlikely things which stood in the way of the Obama Administration’s contraception and abortion push: the U.S. Supreme Court and the 2016 presidential election. Few people anticipated a left-leaning Supreme Court would recognize the constitutional problems inherent in the Contraception Mandate, and fewer still anticipated a Trump victory, much less the keeping of pro-religious liberty campaign promises once elected.

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When Congress was debating the ACA, there was some concern that Christians would be forced to violate their consciences, but Nancy Pelosi famously said that Congress needed to pass the bill in order to see what was in it. Speaker Pelosi, who once referred to abortion as “sacred ground,” has never let her conscience get in the way of her political career.

Once it was passed, the administration of the ACA was delegated to the Department of Health and Human Services (HHS). Once HHS had the law in its holster, it created a web of agencies and offices through which to implement and enforce the law. This is bureaucracy at its worst. However, at the time, even the HHS was not sure what exactly the law entailed, so they began to wade through the law, piece by piece, in order to roll it out to the public according to the Obama Administration’s time schedule.

The power of bureaucracy is most extreme when the bureaucrat is able to make up the rules along the way. The lack of a meaningful religious exemption in the ACA, coupled with the fact that HHS held virtually unlimited authority in the interpretation and implementation of the law, made the ACA the perfect weapon for tyranny. This reality became unavoidable when the head of HHS, Kathleen Sebelius, issued the specifics of the Contraception Mandate in January 2012. It had taken Sebelius nearly two years from the time her department received the authority to the time she was able to issue the specifics of the Contraception Mandate.

The Obama administration was ready for battle when the ACA’s exemption process was rightfully declared inadequate by dozens of faith-based organizations such as EWTN, Hobby Lobby, and Little Sisters of the Poor. As with any ruler who believes the state holds the answers to society’s ills, Barack Obama believed that the state must take primacy over individual rights. Therefore, HHS, the Department of Justice, and the Obama Administration were happy to push their agenda forward with the full force of executive branch power confident that they would win.

Things did not look promising for Christians. Were we willing to suffer martyrdom in lieu of adjustments to our private consciences? Would the American public rise up against a government which forced Christians to decide between their livelihood and their faith? And would the judicial branch play along with the Obama Administration’s program?

EWTN was willing to risk martyrdom. Even after they lost their case in the 11th Circuit Court of Appeals, they kept fighting for their beliefs. Unfortunately, most Americans remained relatively docile while the government intruded into the consciences of Christians. Surprisingly, it was the Supreme Court which rose to the defense of religious freedom in June, 2014.

The Supreme Court majority, which included the swing voter Anthony Kennedy, held that a corporation founded on Christian values, such as Hobby Lobby, could not be forced to violate the consciences of its shareholders. Since the Hobby Lobby decision, progressives have watched helplessly as several cases were decided against the anti-Christian agenda of the Obama Administration.

Then came June 2016, when Zubik v. Burwell set the stage for EWTN’s victory in 2018. In the Zubik case, the Obama Administration admitted that there were “less-restrictive” means by which to achieve the Obama Administration’s goal regarding the Contraception Mandate.

In cases where individual rights are at risk of being negatively impacted by government action, one of the factors considered by the Court is whether the government can achieve its goal in a way which does not infringe on the rights of individuals. In other words, “Is there a different way to get this done?”

Because of the Obama Administration’s admission that the state did not have to force organizations such as Little Sisters of the Poor, East Texas Baptist University, or the Archdiocese of Washington, D.C., to violate their consciences in order to achieve the government’s goal, the Supreme Court did something unusual. They sent the parties back to their conference rooms to resolve their disputes in a way which protected the consciences of the individual; this had the effect of kicking the can down the road a few years.

Keep in mind that this was June 2016, when nearly everyone expected Hillary Clinton to be the next president of the United States. Had Mrs. Clinton been elected, things might have been different for EWTN and the other Christian organizations which opposed the Contraception Mandate. However, once the Trump Administration was in place, EWTN’s chances for a favorable settlement increased.

Alas, the battle is not over. The Attorney Generals of California and Pennsylvania are still attempting to force employers to comply with the Contraception Mandate in their respective states.

Therefore, we need further action from the Trump Administration. If Donald Trump is truly a champion of religious freedom, he will eliminate the need for an exemption and allow employers to simply opt-out, or withdraw the mandate entirely. This would end the California and Pennsylvania cases overnight. Now that the courts have unexpectedly forced a reasonable and constitutional resolution regarding the conscience objections to the ACA, it is time to ask President Trump to put this matter to rest once and for all.

(Photo credit: EWTN Chairman and Chief Executive Officer Michael P. Warsaw / EWTN)


  • Bob Sullivan

    Mr. Sullivan is a practicing attorney and a columnist for The Southern Nebraska Register. His writing has also appeared in Catholic Answers Magazine, Catholic Exchange, and the Catholic Gentleman. He and his family live in Wahoo, Nebraska. Read more at www.bsullivan.org.

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